If the Bench Finds Law Journal Articles Irrelevant, What About Law Prof Amicus Briefs?

According to Tun-Jen Chiang's PrawfsBlog post, Amicus Briefs and the Academic-Judge Divide, law prof amicus briefs are just as, if not more, irrelevant then their scholarly law journal output. "In discussions about the supposed uselessness of legal scholarship to judges, I often ask: 'should law professors file more amicus briefs?'  Responses are mixed, but my general impression is that judges see law professor amicus briefs as just about equally, if not more, useless than their articles," writes Tun-Jen Chiang.

This, to me, is a pretty illuminating attitude.  The usual complaints about law review articles—that they are too abstract and don’t grapple with legal materials like case precedent in a serious way—really can’t be said about law professor amicus briefs, which usually do make legal arguments in a lawyerly way.  If what judges are really seeking from law professors was help in legal analysis from a group of reasonably intelligent individuals with expertise in an area and time to conduct research, then an amicus brief should answer all of those requirements.

But help in legal analysis and decision-making is not what judges are really looking for.  A modern judge has lots of help on legal analysis from numerous sources like law clerks and staff attorneys, in addition to the parties’ attorneys, with Lexis and Westlaw making research ever more easy.  The contribution that a law professor can provide on top of this is minimal.  What judges really want from law professors are convenient citations to support an outcome the judge already has in mind, but that the judge wants to attribute to an authoritative and “objective” source other than the judge himself.  An amicus brief provides less of the appearance of authority and objectivity than a law review article does.  Our depriving judges of one traditional source of the sheen of objectivity that is necessary to sustain the formalist myth is what really drives the complaints from those quarters.

Perhaps there was a time when amicus briefs authored by law profs were valuable but Tun-Jen Chiang correctly observes:

A modern judge has lots of help on legal analysis from numerous sources like law clerks and staff attorneys, in addition to the parties’ attorneys, with Lexis and Westlaw making research ever more easy. The contribution that a law professor can provide on top of this is minimal.

What judges want is something akin to citing and quoting blackletter statements of law produced by authoritative doctrinal analysis that once were but is no longer be as readily available from recognized authorities because those titles are now spit out by "Publisher's Staff" without the expertise required to produce new authorative black-letter statements.

Filling the legal treatise vacuum created by vendor commodization. Law journal literature has not filled the gap in editorial analysis produced by our vendors traditional updated sources. Hell, take for example contract law. Do our vendors even stay true to the different schools of thought that originally resulted in competing intellectual perspective produce by Williston and Corbin. I'm thinking the kids employed straight out of law school as editorial staff probably don't even know what I am referring to.

I also thing there is no reason for court libraries to continue acquiring these qualited-deluded titles in print or online. In the "new normal" editorial quality matters and if traditional named author-branded titles fail to meet current expections, contrary to past expections, it is time kill them and look for alternatives that the Bench can use. Some of our very expensive legal information providers apparently believe that branded titles are beyond critical evaluation because users will always want to rely on them -- they even rely of the reluctance of librarians of a certain age to elminate old standbys from the collection. No longer the case in the Shed West Era. They are ignoring generational shifts in conducting legal research, shifts promoted by those vendors who minimize the importance of using of secondary legal sources. But I digress... .

Tun-Jun Chiang writes

What judges really want from law professors are convenient citations to support an outcome the judge already has in mind, but that the judge wants to attribute to an authoritative and “objective” source other than the judge himself.  An amicus brief provides less of the appearance of authority and objectivity than a law review article does.  Our depriving judges of one traditional source of the sheen of objectivity that is necessary to sustain the formalist myth is what really drives the complaints from those quarters.

Well, that's hardly an earth-shattering revelation. Just legal formalism? Let's toss in legal realism. Absent some sort of "unified theory" for interpretation of the Big Bang of access to primary legal materials that is and has existed for several decades, law profs have plenty of fodder for churning out amicus briefs as well as law journal articles based on micro-interpretative schools of thought which don't offer any intellectual assistance to the Bench.

Hat tip to the Legal Skills Prof Blog postby Villanova's Louis Siricos, Jr. [JH]